959 F.

2d 1187

UNITED STATES of America

v.
Darnell PHILLIPS, Appellant.
No. 91-3252.

United States Court of Appeals,

Third Circuit.
Submitted Under Third Circuit Rule 12(6)
Jan. 27, 1992.
Amended Opinion March 3, 1992.
Rehearing and Rehearing En Banc Denied May 11, 1992.

William C. Carpenter, Jr., U.S. Atty., Richard G. Andrews, First Asst.

U.S. Atty., Robert J. Prettyman, Asst. U.S. Atty., Wilmington, Del., for
appellee.
William H. Murphy, William H. Murphy, Jr. & Associates, Baltimore,
Md., for appellant.
Before: MANSMANN, HUTCHINSON and ROSENN, Circuit Judges.
OPINION OF THE COURT
MANSMANN, Circuit Judge.

I.

In this appeal from a judgment of sentence after a jury trial, we are faced with
the questions of whether the district court erred by failing to suppress evidence
obtained through a court ordered wiretap, failing to grant an acquittal on Count
II of the indictment on the basis of double jeopardy, failing to adequately
charge the jury on multiple conspiracies, and, by enhancing the offense level
under the Sentencing Guidelines. Because we do not find any legal error or
abuse of discretion on the part of the district court, we will affirm the judgment
of conviction and order of sentence.

In February of 1990, the federal Grand Jury for the District of Delaware
indicted Darnell Phillips on multiple counts ranging from conspiracy to
distribute cocaine (Count I); conspiracy to use a telephone to facilitate a felony
drug offense (Count II); use of a telephone to facilitate a felony drug offense
(Counts IV, VIII, X, XV, XVI, XVIII, and XX) and possession with intent to
distribute cocaine (Count XXI).

The indictment arose out of an investigation by Delaware State Police

detectives including electronic surveillance by a court ordered wiretap. The
investigation disclosed that Phillips travelled to Philadelphia approximately
three to four times a month to purchase four to six ounces of cocaine which he
then sold to Darryl Jarmon and his co-conspirators.

After his arraignment, Phillips, with his co-defendants, filed several motions
with the district court. In particular, Phillips raised the issue that the
government had failed to exhaust all investigative means before obtaining the
court order for the wiretap which was placed on his co-defendant's telephone.
The district court denied the defendants' motions. Phillips' co-defendants later
entered guilty pleas.

After a jury trial, at which many of Phillips' co-defendants testified against him,
Phillips was found guilty on all counts. He was sentenced by the district court
on April 16, 1991, to 188 months incarceration, five years supervised release
and a special $500 assessment. Phillips filed a timely appeal from the
conviction and sentence.

II.
6

III.

We review de novo the question of whether a full and complete statement of

necessity for a wiretap was made in the application. Once it is determined that
the statement was made, we will review the court's determination of necessity
for an abuse of discretion. We have plenary review of the question of the
district court's refusal to enter a judgment of acquittal as to Count II on the basis
of double jeopardy since it involves a question of law. We review Phillips'
challenge to the instructions on multiple conspiracies given to the jury by the
district court under an abuse of discretion standard. With respect to sentencing
under the Sentencing Guidelines, we will not reverse the district court's
decision to enhance the offense level unless we determine that the factual
finding supporting the enhancement is clearly erroneous.

Phillips contends that the district court should have suppressed the contents of
the wiretapped conversations because the government failed to make a full and
complete statement as to whether traditional investigative techniques had been
tried and failed or would be too dangerous. The statement of necessity to which
Phillips refers is a statutory requirement of 18 U.S.C. 2518(1), which
provides that an application for an order authorizing the interception of
communications "shall be made in writing upon oath or affirmation" and shall
include "a full and complete statement as to whether or not other investigative
procedures have been tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous." 18 U.S.C. 2518(1).

Phillips argues that only if other investigative methods have been exhausted or
would be too dangerous or impractical, should a wiretap order be granted. The
government contends that this is a new theory not advanced before the district
court. Our review of the record reveals that Darryl Jarmon's motion to suppress
the wiretap evidence was denied on August 3, 1990 along with Phillips' motion
to suppress the evidence of the police search at the time of his arrest. The
district court treated the motion to deny the wiretap evidence as though both
defendants were advancing the arguments. Therefore, for review purposes, we
will treat the issue as one having been placed before the district court.

We refuse to place as strict an interpretation on the wiretap statute as Phillips

wishes. Moreover, we have reviewed the statement in the application by the
government regarding the use of normal investigative procedures and note that
the government believed that the use of an undercover agent would have been
too dangerous due to the close association of the conspiracy's members and
because the area was a small community where everyone was acquainted and
outsiders would have been immediately suspect. Appendix at 785-86. Thus, we
conclude that the district court did not abuse its discretion by considering the
government's affidavit to be a full and complete statement of necessity.

10

Phillips next argues that a judgment of acquittal should have been entered by
the district court as to Count II because Count II, conspiracy to use the
telephone to facilitate a felony drug offense was included in Count I, conspiracy
to distribute cocaine. Phillips reasons that because two people are necessary to
have a telephone conversation and two people are necessary to have a
conspiracy, then Count II is duplicitous to the general conspiracy in Count I.
Furthermore, Phillips argues, under Wharton's Rule, two people may not be
convicted of conspiracy to commit a crime if the crime requires two people to
commit it. Iannelli v. United States, 420 U.S. 770, 773-74 n. 5, 95 S.Ct. 1284,
1288 n. 5, 43 L.Ed.2d 616 (1975). Therefore, Phillips reasons, he is being
exposed to multiple punishments for the same crime.

Wharton's rule provides:

11 agreement by two persons to commit a particular crime cannot be prosecuted as a
An
conspiracy when the crime is of such a nature as to necessarily require the
participation of two persons for its commission.
12

1 Anderson, Wharton's Criminal Law and Procedure 89, 191 (1957).

Wharton's Rule arose in cases involving crimes such as bigamy, adultery and
dueling where the immediate consequences of the crimes were felt by those
involved. United States v. Bommarito, 524 F.2d 140, 144 n. 3 (2d Cir.1975).

13

Wharton's Rule is inapplicable to Phillips' conviction on count two for two

reasons. First, Wharton's Rule does not apply where more persons than are
necessary to complete the substantive offense are involved in the conspiracy.
Iannelli, 420 U.S. at 782 n. 15, 95 S.Ct. at 1292 n. 15; United States v. Rueter,
536 F.2d 296, 298 (9th Cir.1976). Count two charged Phillips and four other
defendants with conspiracy to use the telephone to facilitate the distribution of
cocaine in violation of 21 U.S.C. 846. The evidence at trial supported this
charge with respect to the involvement of more than two participants. Thus,
while only two persons are necessary to complete the substantive offense of
using the telephone to facilitate the distribution of cocaine, more than two
persons were involved with conspiracy to commit the substantive offense. App.
at 805.

14

Second, Wharton's Rule "has current vitality only as a judicial presumption, to

be applied in the absence of legislative intent to the contrary." Iannelli, 420
U.S. at 782, 95 S.Ct. at 1292. At least two United States Courts of Appeals
have held that Congress did not intend Wharton's Rule to apply to section 846,
the conspiracy section that the indictment charged Phillips with violating,
because the consequences of the conspiracy are felt by society at large.
Bommarito, 524 F.2d at 144. See also United States v. Jones, 801 F.2d 304,
311 (8th Cir.1986). We agree with our sister courts of appeals that Congress did
not intend Wharton's Rule to be applicable to 846. Therefore the district court
did not err in denying Phillips' motion for judgment of acquittal on Wharton
Rule grounds.

15

Phillips next contends that the district court abused its discretion by failing to
charge the jury with the defense's proffered charge. We will reverse the district
court's denial to charge a specific jury instruction only when the requested
instruction was correct, not substantially covered by the instructions given, and
was so consequential that the refusal to give the instruction was prejudicial to
the defendant. Phillips' requested charge on multiple conspiracies, rather than

assisting the jury, would have confused them by its reference to numerous
defendants when only one co-defendant was on trial. Moreover, the charge
given by the district court did include the most important element of Phillips'
requested charge. Indeed, the jury was instructed that it could find Phillips
guilty of the conspiracies alleged in Counts I and II only if a conspiracy existed
between Phillips and one other person and if he was a member of the
conspiracy charged in the indictment and not some other conspiracy. Clearly,
the district court's instruction to the jury contained the essentials of the charge
without unduly confusing the jury. We find that the district court did not abuse
its discretion in failing to give the requested charge.
IV.
16

Finally, Phillips' last argument addresses the sentence itself. Phillips contends
that the upward departure of four levels by the district court was a violation of
the Sentencing Guidelines because the district court made an allegedly
erroneous finding that Phillips was a leader or an organizer under 3B1.1(a) of
the Guidelines. The government correctly notes that the district court did not
make an upward departure from the Guidelines, but rather, enhanced Phillips'
offense level due to his role in the organization.

17

In United States v. Ortiz, 878 F.2d 125 (3d Cir.1989), we dealt with the factors
the sentencing court should consider in determining whether an individual
acted as a "leader" or an "organizer." These factors include:

18 exercise of decisionmaking authority, the nature of the participation in the

the
commission of the offense, the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised over others.
19

Ortiz, 878 F.2d at 127, citing Sentencing Guidelines 3B1.1 commentary. The
examination of these elements involves a factual determination by the
sentencing court which we can reverse only if we find the decision to be clearly
erroneous. 878 F.2d at 127. We consider a finding to be clearly erroneous
when, although there is evidence to support it, we are left, after reviewing all
the evidence, with a firm conviction that a mistake has been made. Ciba-Geigy
Corp. v. Bolar Pharmaceutical Co., Inc., 747 F.2d 844, 850 (3d Cir.1984).

20

The background comment to Guideline 3B1.1 notes: "This section provides a

range of adjustments to increase offense level based upon the size of the
criminal organization (i.e., the number of participants in the offense) and the

degree to which the defendant was responsible for committing the offense."
Sentencing Guidelines Manual, 3B1.1, commentary. Clearly, 3B1.1 is
intended to apply to criminal activity engaged in by more than one participant.
Moreover, because 3B1.1 does not apply when a defendant engages in
criminal activity that is executed without the aid of others, for 3B1.1 to apply,
"the defendant must have exercised some degree of control over others involved
in the commission of the offense." United States v. Fuller, 897 F.2d 1217, 1220
(1st Cir.1990). See also United States v. Mares-Molina, 913 F.2d 770, 773 (9th
Cir.1990) ("in distinguishing 'leaders and organizers' from 'managers and
supervisors', ... some degree of control or organizational authority is required
for section 3B1.1 to apply").
21

The district court found that Phillips was the source of cocaine for the group
which included five or more people. Phillips chose the times when he would
travel to Philadelphia and recruited people to travel with him. Once he obtained
the cocaine, Phillips was responsible for storing it at two different locations
until it was needed by Jarmon to distribute. Moreover, the court found that
when Phillips' supply was gone, he directed others to Darryl Jarmon. The court
concluded with the finding that Phillips was equally culpable with Darryl
Jarmon as an organizer of the distribution scheme. (Guidelines 3B1.1 allows
for a finding that more than one person held an aggravating role in the
organization and provides for sentencing accordingly.) App. at 682-84.

22

Our independent review discloses that the record, which includes testimony by
Phillips' co-conspirators and transcripts of the wiretaps, supports the findings of
the district court. Derrick Powell testified that he saw cocaine in Phillips'
possession on two separate occasions, once in Philadelphia and once in Sussex
County at Darryl Jarmon's house. App. at 290-92. Moreover, he testified that if
Phillips did not travel to Philadelphia, there would not be any cocaine to sell.
App. at 298.

23

For example, on the evening of December 27, 1989, Jarmon placed more than
ten calls to Phillips' house attempting to contact his source. While Jarmon
attempted to reach Phillips, Jarmon received calls from several people who
wanted to know if Jarmon had heard anything yet about the status of the
cocaine. App. at 509-512. On the previous evening, Jarmon had asked Phillips
if he was going to Philadelphia to get a supply of cocaine, but Jarmon was not
able to demand that Phillips go. App. at 501. Clearly, Phillips was able to set
his own timetable and manner of purchasing the cocaine as well as recruiting
others to accompany him.

24

At the time of his arrest at a liquor store on December 28, 1989, Phillips was

24

found to have $3,410 in cash in his pocket. This was less than a day after he had
returned from purchasing cocaine in Philadelphia. His accomplice was found to
have two plastic bags of cocaine in his possession. One bag was in the
accomplice's pocket, the other the accomplice had attempted to throw on the
floor when the police arrived. App. at 128-30. The discovery of that much cash
in Phillips' possession would bear out that he was able to receive a larger share
of the profits than others in the organization.

25

We conclude that there is sufficient record evidence from which the district
court could conclude that Phillips acted in the role of organizer or leader.
Consequently, we cannot say that, in determining that Phillips acted in that role,
the district court's finding was clearly erroneous.

V.
26

We will affirm the judgment of conviction and order of sentence entered by the
district court.

27

ROSENN, Circuit Judge, concurring and dissenting.

28

I join in parts I, II, and III of the majority's opinion, but respectfully dissent
from part IV affirming Phillips' sentence. I cannot agree with the majority that
there is sufficient record evidence from which the district court could conclude
that Phillips acted in the role of a leader or an organizer.

29

The majority concludes that an independent review of the record supports the
district court's finding that Phillips acted as a "leader" or an "organizer" of
criminal activity. There is evidence that Phillips recruited one or two persons to
accompany him when he picked up drugs in Philadelphia and that Phillips was
a principal source of cocaine to Jarmon. However, in my mind, this limited
evidence alone is insufficient to support the severe four-level enhancement for
leadership or organizational activity under United States v. Ortiz, 878 F.2d 125,
127 (3rd Cir.1989). See Maj. Opinion at 1191.

30

One of the principal considerations determining leadership or organizational

characteristics under Ortiz is "the degree of control and authority exercised over
others." Ortiz, 878 F.2d at 127. Here, there is no evidence that Phillips
exercised any control over Jarmon or the other members of Jarmon's drug
distribution ring. Similarly, his role as one of several suppliers to Jarmon makes
Phillips nothing more than a conduit of drugs, but is not evidence of control
over Jarmon or Jarmon's drug ring. Nor does Phillips' supply of drugs to Jarmon

constitute "the exercise of decisionmaking authority" within the drug ring. See
Ortiz, 878 F.2d at 127.
31

The majority relies on Derrick Powell's testimony that he saw cocaine in

Phillips' possession on two separate occasions. I am unable to see how
possession of cocaine on two occasions renders one a "leader" or an "organizer"
of criminal activity under Ortiz. The majority also relies on Powell's testimony
that if Phillips did not travel to Philadelphia, there would not be any cocaine to
sell. Certainly, this evidence supports the district court's finding that Phillips
provided a flow of cocaine into the distribution scheme; however, the indirect
effect on the organization's drug distribution caused by Phillips' inability to
obtain supplies is not the exercise of "control" or decision making authority
enunciated in Ortiz. If Jarmon chose to rely primarily on Phillips to supply
cocaine for distribution and Phillips could not always produce, this reveals only
that Phillips was an unreliable supplier; not necessarily a leader in the
organization.

32

The majority points to an occasion when Jarmon placed more than ten calls to
Phillips' house in an attempt "to contact his source" and that several people
called in the interim to check on the status of the cocaine. (Maj. Opinion at
1192) This lends nothing to the conclusion that Phillips was a leader; it merely
reveals that Jarmon was in dire need of cocaine for distribution on that
particular occasion. In addition, the majority asserts that Phillips was a leader or
an organizer because on the previous evening, Jarmon had inquired about
Phillips' trip to Philadelphia to get a supply of cocaine but was unable to
demand that Phillips go. Even if, as the majority states, this evidence suggests
that Phillips was able to set his own timetable and manner of purchasing
cocaine, this does not ipso facto transform Phillips into a "leader" or an
"organizer" in Jarmon's drug organization. It only supports Phillips' contention
that he was merely an independent drug supplier.

33

Moreover and significantly, there is no evidence that Phillips claimed the right
of a larger share of the profits than others in the organization. The majority
concludes that Phillips "was able to receive a larger share of the profits than
others in the organization" because the police found $3,410 in cash in his
pocket on the day of his arrest. I disagree with this conclusion for two reasons.
First, there was no testimony linking the cash found on Phillips to the drug
activities of the organization. Second, there is no evidence in the record
regarding the extent of Phillips' share of the profits. I am unwilling to construe
Ortiz in a manner that renders the mere possession of $3,410 in cash, without
evidence of its source, proof that the defendant received a larger share of the
profits.

34

Finally, the district court found that Phillips acted as an organizer because on
various occasions he stored cocaine at two different locations until it was
needed for distribution. A finding that storing drugs in the woods until a
kingpin is ready to distribute them is a far cry from the type of "organization"
of criminal activity required for the 3B1.1 sentencing enhancement.

35

In sum, I believe that the evidence of Phillips' alleged leadership activity relied
on by the majority supports nothing more than the finding that Phillips was an
independent drug supplier to the Jarmon organization. Although I agree with
the majority that more than one individual may function in a leadership
capacity within a criminal organization, the Government has not established by
the preponderance of the evidence that Phillips was a leader or an organizer of
Jarmon's drug ring.

36

The court sentenced Phillips to the maximum term of confinement for his
offenses and his alleged leadership role, 188 months or nearly 16 years. The
enhancement, resting on slender reeds indeed, represents an additional five
years and seven months of incarceration on top of an already severe sentence
for offenses unaccompanied by violence, firearms, or other exacerbating
circumstances.

37

The majority aptly observes that "we consider a finding to be clearly erroneous
when, although there is evidence to support it, we are left, after reviewing all
the evidence, with a firm conviction that a mistake has been made." (Maj.
Opinion at 1191) Here, there is insufficient evidence to support the district
court's finding of Phillips' leadership or organizational role and I am left with a
firm conviction that the district court erred. Accordingly, I respectfully dissent
from part IV of the majority's opinion.

SUR PETITION FOR REHEARING

May 11, 1992.
38
39

Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN,

GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO,
ROTH and ROSENN,* Circuit Judges.

40

The petition for rehearing filed by appellant pro se in the above entitled case
having been submitted to the judges who participated in the decision of this
court and to all other available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having asked for rehearing,
and a majority of the circuit judges of the circuit in regular active service not

having voted for rehearing by the court in banc, the petition for rehearing is
denied.

Judge Rosenn voted only as to panel rehearing